State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 11, 2015 518837 

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In the Matter of SEAMUS LYONS,

Petitioner,

v MEMORANDUM AND JUDGMENT

SUPERINTENDENT OF STATE POLICE,

JOSEPH D'AMICO, et al.,

Respondents.

________________________________

Calendar Date: April 21, 2015

Before: Lahtinen, J.P., McCarthy, Garry and Rose, JJ.

__________

Law Office of Terrance P. Dwyer, Poughkeepsie (Terrance P.

Dwyer of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Kate H.

Nepveu of counsel), for respondents.

__________

Lahtinen, J.P.

Proceeding pursuant to CPLR article 78 (transferred to this

Court by order of the Supreme Court, entered in Albany County) to

review a determination of respondent Division of State Police

Hearing Board which found petitioner guilty of misconduct.

An internal investigation by the State Police regarding

missing evidence resulted in misconduct charges against

petitioner, a State Trooper, for allegedly failing to obey a

lawful order to truthfully answer questions and knowingly making

a false entry in official records. Following a disciplinary

hearing, respondent Division of State Police Hearing Board found

petitioner guilty of the two charges and recommended 60 days

unpaid suspension, one year of probation and a letter of censure. 
-2- 518837 

Thereafter, a police captain showed petitioner a determination

already signed by respondent Superintendent of State Police that

terminated petitioner's employment, and the captain told

petitioner that he had 10 minutes in which to resign or he would

be terminated. Petitioner resigned.

Petitioner subsequently commenced this CPLR article 78

proceeding seeking to be reinstated. Respondents moved to

dismiss asserting that petitioner's decision to resign resulted

in no final agency determination. In January 2014, Supreme Court

denied the motion, finding that there had been a final agency

determination given the proof that petitioner had been shown a

termination letter already signed by the Superintendent and then

allowed only 10 minutes to either resign or he would be fired. 

Respondents' motion to reconsider was denied in May 2014 and,

thereafter, an order was entered in August 2014 transferring the

case to this Court for review of the substantial evidence

question.

Initially, we consider respondents' argument that, since

petitioner resigned, there was no final agency action over which

the Court has jurisdiction. Although a resignation "would

ordinarily be beyond our review, exceptions exist where . . . the

resignation was allegedly ineffective and involuntary" (Matter of

Melber v New York State Educ. Dept., 71 AD3d 1216, 1217 n [2010]

[citation omitted]). It is undisputed that the Superintendent

had signed a written decision terminating petitioner's

employment. Significantly, the document was handed to petitioner

and he was then told that he had 10 minutes to accept an "option"

of resigning. Under the narrow circumstances, petitioner was

effectively terminated by a final agency action when he was

handed the signed termination document.

Turning to the merits, our review is limited to whether the

agency's determination is supported by substantial evidence (see

Matter of Revella v Felton, 60 AD3d 1184, 1185 [2009]). 

Credibility determinations are for the administrative factfinder

when conflicting proof is presented (see Matter of Bassett v

Fenton, 68 AD3d 1385, 1387 [2009]; Matter of Tessiero v Bennett,

50 AD3d 1368, 1369 [2008]). Petitioner and a police investigator

were assigned to transport cocaine and marihuana that had been
-3- 518837 

seized and then to secure the illegal substances in an evidence

locker at a police lab. However, the evidence was lost. During

the ensuing investigation, petitioner gave statements and made

factual claims that were contradicted by, among other things,

proof provided by EZ Pass records, electronic key records, and

cell phone records. Petitioner contended that he had interacted

with an investigator at the lab where the lost evidence was to be

delivered, but records reflected that such investigator was not

working on that date and, moreover, an investigator who was

working stated that petitioner had not been at the lab. Despite

various monitoring systems that were in place at the lab, there

was no indication that petitioner or the investigator who

accompanied him were at the lab or accessed the evidence locker

on the day in question. Efforts by police to recreate the routes

and times that petitioner claimed he traveled revealed that the

routes could not be traveled as claimed by petitioner. Although

petitioner offered explanations for some of the many

discrepancies, this created a credibility question which was

resolved against him. Substantial evidence supports the

administrative determination.

With regard to the penalty, we have observed that "a State

Trooper holds a position of great sensitivity and trust and a

higher standard of fitness and character pertains to police

officers than to ordinary civil servants" (Matter of Bassett v

Fenton, 68 AD3d at 1387-1388 [internal quotation marks, brackets

and citations omitted]). In light of findings of repeated false

statements where the underlying matter implicated missing

evidence, together with the failure to accept responsibility even

when confronted with contrary documentary proof, we cannot say

that the penalty shocks our sense of fairness (see id. at 1388;

see also Matter of Salatel v New York State Police, 98 AD3d 1214,

1216 [2012]). 

McCarthy, Garry and Rose, JJ., concur.
-4- 518837 

ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court